Future earnings no longer to be accounted in compensation – Blackman

Published on
May 9, 2020

The Employment Rights Tribunal (ERT) is today acknowledging that yesterday’s Caribbean Court of Justice (CCJ) ruling in the unfair dismissal case of a former Chefette senior employee, will influence a number of matters which it had placed on pause pending the outcome of that judgment.

It was the 2016 decision of the tribunal to award Orlando Harris some 106,630.01 in compensation after finding he was unfairly dismissed, that caused Chefette to challenge the level of damages before the local Court of Appeal and then at the CCJ – the final arbiter.

While the CCJ reaffirmed the decisions of the ERT and the local Appeals Court that Harris was unfairly dismissed and was entitled to compensation, the regional panel of judges however upheld the restaurant’s contention that the award – even when reduced to $95,000 by the local appeal judges –was excessive and that future loss of wages must no longer be a factor in calculating such payouts.

“It influences a number of matters that I have put in abeyance until this decision came down,” tribunal Chairman retired High Court and Court of Appeals Justice Christopher Blackman told Barbados TODAY this afternoon.

Justice Blackman would not commit to sharing whether he believed any of his awards of compensation were excessive in light of yesterday’s CCJ judgment.

In September last year, in a judgment delivered by Justice Blackman and covered by this media house, former acting Senior Settlement Officer of First Citizens Bank Barbados Limited Debra Brathwaite was awarded $303,570.29, a figure that made provisions for loss of future wages.

“In light of the foregoing and taking into account that 41 months after dismissal, the claimant remains unemployed, the tribunal, pursuant to paragraph 1(b) of the Fifth Schedule, makes an award of $181,428.69. being $4,425.09×41. In the aggregate, the claimant is due $303,570.29by the respondent,” the former High Court Judge ruled then.

Today, the tribunal chairman told Barbados TODAY he was not surprised at the CCJ decision.

“I am not totally surprised. I had taken a position early on in my appointment that the Act [Employment Rights Act] needed some significant amendments to really provide for a proper rationale for compensatory amount as they have done in the English Act,” Justice Blackman said.

He argued that 1 (b) of the local Act was too loosely worded to fully support it.

“There was a lot of contention among the tribunal…and I said it would need to be resolved at another level. So it is easier to be resolved if you make it something that people would take it elsewhere and get a ruling. I have no problem with that determination,” he declared.

Justice Blackman is also of the view that the CCJ has not seen the last challenge to the Barbados Employment Rights Act, particularly with respect to the tribunal.

“There are a few areas in the Act that would still raise issues as to whether the tribunal can make an additional award.And so there is going to be more work going to the CCJ over time for these same issues to be ironed out,” the former Appeals Court Judge stated.

He gave the example of questions surrounding a claimant’s entitlement to re-engagement or re-instatement and compensation, as one of those areas that could end up before this island’s highest court of appeal that sits in Port of Spain.

“There is the issue of re-instatement or re-engagement. If you don’t make that order, is there is fiat to provide under Section 37 that the claimant has an entitlement. So there are a few areas like that are still going to provide some areas of concern,” the tribunal chair told Barbados TODAY.

“In that regard, I know there are some rulings I have made where I held against re-instatement and re-engagement, made an award and they are pending before the Court of Appeal. Hopefully the Court of Appeal will rule on it sooner rather than later and then they would go down to the CCJ and get that other aspect of it clarified,” said the former Appeals Court Judge.

“But going forward I would expect that people should think for the most part that they are going to get a basic award and provision of notice,” he pointed out.

Justice Blackman also said that the process has started on resuming those cases which he had placed in abeyance pending the outcome of the CCJ judgment on the Chefette matter.

“I have already given directions…I have asked the secretary to send emails to the lawyers involved and ask them to give me submissions further, consequence to Chefette and Harris. And as soon as they come back to me, I will fix a date for a hearing,” he disclosed.

The tribunal chair also said that future hearings will take into consideration physical distancing while having face-to-face sessions instead of operating online.

He pointed out that it was more appropriate to conduct physical hearings than virtual ones.“I don’t think a virtual hearing is appropriate at this time, quite frankly,” he declared.

Justice Blackman revealed that the large meeting room at the Labour Department in Warrens will be reconfigured to facilitate physical distancing in compliance the protocols aimed at limiting the spread of the COVID-19 virus.

He said there are about 15 cases which had been placed in abeyance, some of which have not yet been heard.[email protected]

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One Reply to “Future earnings no longer to be accounted in compensation – Blackman”

I really do not understand the reason why this matter is drawing so much attention. The CCJ’s decision is absolutely the correct one.

The headline statement to this article that “future earnings is no longer to be considered in compensation” is a bit disingenuous for lack of a better term.

Future earnings in this particular case should never have been considered given the simple fact that this individual was not prevented by the establishment from seeking employment after he was fired. There will be cases where future earnings must be considered but this particular case was surely not one of them.

I must compliment the attorneys representing this establishment for appealing the flawed decision of awarding damages over and above the severance amount this individual was entitled to.

In general, an employer has the unfettered right to dismiss an employee at any time, with or without “just cause”. If there is no cause for termination, then working notice or payment instead of notice (severance) is required.

Was there wrongful dismissal in this particular case where the termination breaches one or more terms of the contract of employment? I don’t see it.

My conclusion, “milking”. Those in the know will know (play on words) what I mean.